Will Faulty Government Software Really Cause Thousands of Divorce Settlements to be Re-Opened?

21/12/2015 15:49 GMT
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Updated
18/12/2016 10:12 GMT

Richard Adams
Specialist family lawyer with expertise in LGBT family and relationship issues

The discovery of a software glitch in Government documentation used to help divorcing couples in England and Wales reach a financial settlement has led to claims that thousands of couples may have to re-visit these settlements as a result. But just how concerned should anyone who has been through this process be?

The error has been found in a document called the 'Form E' available for download on the Ministry of Justice Website, which is used to provide details of a couple's financial circumstances to ensure that any agreement or settlement reached is fair. It affects the page of the Form which lists a summary of the financial information provided, causing the figure for debts and liabilities to be ignored from the final calculation. This could artifically inflate bottom line of the available assets and suggest that there is more money available than there actually is.

The Form E has apparently been downloaded from the website over 20,000 times since April 2014, which could suggest that thousands of couples are affected. However, the reality is that those who have reached an unfair financial settlement as a result are likely to be significantly lower for the following reasons:

If someone used a lawyer during their divorce, then most, if not all, law firms do not rely on the version of the Form E available from the Ministry of Justice website but instead have their own software which does not have this error. So for the most part it will have been litigants in person, i.e. those without lawyers, who have used this particular form.

It is very unlikely that the summary page alone is used as the sole basis to calculate an appropriate financial settlement. The page has limited value other than as a snapshot as it collates different types of assets such as property, investments and pensions, which are often more appropriately considered separately within a settlement.

Additionally, in most cases, particularly in court proceedings, those figures will be double-checked and/or an additional Schedule is prepared to provide a more comprehensive overview, in which such an error would not automatically be transposed. A lot of time is spent establishing financial circumstances in order to reach a financial settlement, so it will be very rare for anyone to rely on one page along.

Whilst the Form has been downloaded by thousands of people, this does not mean that the auto-calculate function has been used. Unless the person who downloads it has additional paid-for software, it is not generally possible to save and amend the Form. So many will simply download it to complete by hand in order to give to their lawyers to double-check and enter it into their own software, or to exchange with their spouse/partner, based on their own calculations.

It is therefore likely that it is only those couples who did not use a lawyer to reach a financial settlement on divorce and who relied on the auto-correct function of the Ministry of Justice software who have cause for concern, and the number of cases affected will be significantly lower than the numbers being bandied around within the press.

But even if that is the case, that does not mean that the settlement is unfair as it will depend upon the extent to which any miscalculation affected the understanding of the overall financial situation and whether it led to an outcome that would otherwise not have been agreed or ordered by the Court, which is by no means a given.

It is of course concerning that such an inaccuracy was found within the software and was undiscovered for so long. It is right that this is being investigated, and anyone concerned that they may have been affected should seek advice about this. However, it is important not to exaggerate how likely it is that divorced couples will be in this position, given the destabilising affect that attempts to re-open a divorce settlement could have, both in terms of the financial and emotional cost of doing so.

What is bitterly ironic is that those most likely to be affected are those who have not been able to afford or obtain legal representation to help them reach a financial settlement on their divorce. The removal of legal aid from almost all cases (save where it is proven that there has been domestic violence) has led to a rise in couples having to represent themselves through what can be a difficult and draining procedure, with little available or necessary support. Already affected by the increasing difficulty in accessing justice, it appears they have been let down again.